Private-Sector Employers Required to Post NLRB Notice About Employee Rights to Unionize

The National Labor Relations Board (the “Board” or “NLRB”) recently issued a final rule requiring most private-sector employers to post a notice of employee rights under the National Labor Relations Act (the “Act” or “NLRA”) in their workplaces. (Chapter 1 of the Board’s An Outline of Law and Procedure in Representation Cases details which employers fall within the Act’s jurisdiction.) Business and industry associations, including the United States Chamber of Commerce, the National Association of Manufacturers, and the National Federation of Independent Business have filed suits challenging the Board’s authority to issue such a rule. Absent a decision by the courts that, in the words of NLRB Member Brian Hayes — who issued a dissent to the rule (starting at page 54037) — would “rescue the Board from itself and restore the law to where it was before the sorcerer’s apprentice sent it askew,” employers must post the notice by November 14, 2011.

Most employers already are required to post notices regarding other workplace laws in a readily visible location, and federal contractors presently must conspicuously post a notice substantially similar to the one at hand. The new posting must appear alongside these and other notices concerning personnel rules or policies. For example, employers who customarily post personnel rules and policies on internet or intranet sites must post the notice on such sites in addition to physically posting the notice. Moreover, where at least 20% of an employer’s workforce is comprised of employees who are not proficient in English and speak another language, the employer must post the notice in that other language too (so long as the NLRB translates the notice in that language).

The potential penalties for failing to post the notice can prove significant. First, the very failure to post can, by itself, constitute an unfair labor practice according to the rule. Additionally, the Board may extend the Act’s six-month limitation period for the filing of any other unfair labor practice charge against an employer who fails to post, even if the failure to post has nothing whatsoever to do with that charge. Furthermore, a knowing and willful failure to post may be used as evidence of unlawful motive by the employer regarding any such charge.

Notably, the rule stems from the NLRB’s belief “that many employees protected by the Act are unaware of their rights under the statute and that the rule will increase knowledge of the NLRA among employees, in order to better enable the exercise of rights under the statute.” Yet key aspects of the NLRA that would enable employees to fully understand their rights are missing from the notice.

For instance, the notice states, “[i]f you and your co-workers select a union to act as your collective bargaining representative, your employer and the union are required to bargain in good faith in a genuine effort to reach a written, binding agreement setting your terms and conditions of employment.” The notice fails to mention that “such obligation does not compel either party to agree to a proposal or require the making of a concession,” as stated at section 8(d) of the Act. Accordingly, employees reading the notice may not understand that the Act provides no guarantee that a collective bargaining agreement will be reached during negotiations, or that it may take months for any such contract to come to fruition. Additionally, the posting may lead to a host of union-related questions by employees reading it.

Significantly, nothing in the rule strips employers of their rights under section 8(c) to express their “views, argument or opinion” on unions. Accordingly, employers may draft a notice of their own to supplement the required posting that clearly and lawfully states their positions on unions, and clarifies employee rights under the Act. Employers also should consider training their front-line supervisors on how to lawfully and effectively address any questions employees may have about unions in light of the notice.

Attorneys in Gibbons Employment & Labor Law Department have extensive experience counseling both union and non-union employers regarding labor relations issues. If you have any questions regarding the impact that this rule may have on your business, please feel free to contact any of the attorneys in the Department.

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